Burke Marshall, Key Strategist of Civil Rights Policy, Dies at 80

By DOUGLAS MARTIN

Published: June 3, 2003

Burke Marshall, the government's legal strategist on civil rights in the era of freedom rides, the Birmingham church bombing and the March on Washington, died yesterday at his home in Newtown, Conn., near Danbury. He was 80.

The cause was myelodysplasia, a bone marrow disorder, said his daughter Catie Marshall.

As assistant attorney general in charge of the Justice Department's civil rights division in the Kennedy and Johnson administrations, Mr. Marshall was a chief contributor to rights victories that included the government's 1961 ban on segregation in interstate travel, the desegregation of the University of Mississippi the following year and adoption of the landmark Civil Rights Act of 1964, which barred discrimination in public accommodations.

Though he used lawsuits in support of civil rights far more frequently than had his predecessors in the Eisenhower administration, Mr. Marshall's preference was to negotiate, with figures as diverse as the Rev. Dr. Martin Luther King Jr. and Gov. George C. Wallace of Alabama.

His low-key approach involved working with local law enforcement agencies as much as possible and at least professing to respect states' rights — the banner of the segregationists — as a legitimate consideration. The local people, he said repeatedly, "are going to be there when we leave."

Mr. Marshall's deft touch eased ticklish situations, enabling him, for instance, to warn Dr. King privately of the possibility that Communists could infiltrate his following, and to elicit the secret help of Southern lawyers Mr. Marshall had known in private practice. He also advised James Meredith, the black student who desegregated the University of Mississippi and whose continued presence on campus required the government to call out the National Guard and units of the 82nd Airborne Division to quell armed riots.

John Lewis, the civil rights figure who became a congressman from Georgia, recalled in a speech at Yale in 1995 that leaders of the movement had been on a first-name basis with Mr. Marshall, whose skills, Mr. Lewis said, may have helped avert a more vast Southern racial clash.

"In times of great struggle and conflict in the South," Congressman Lewis said, "during the freedom rides of 1961, when young people were being beaten by angry mobs in Montgomery and when fire hoses and dogs were being turned on people in Birmingham, people always said, `Call Burke.' "

Mr. Marshall demonstrated a preference for results over rhetoric in preparing the Civil Rights Act. He argued that the ban on discrimination in public facilities should be based on the Constitution's commerce clause, which gives Congress the power to regulate trade among states. Others clung to a seemingly more idealistic position, arguing that the basis should be the 14th Amendment, which forbids a state to infringe on the rights of any of the nation's citizens. Mr. Marshall pressed the practical case that quite similar rights legislation based on the 14th Amendment had been struck down by the Supreme Court in 1883.

Mr. Marshall won. The word "interstate" appears no fewer than 17 times in the relevant section of the 1964 law, and there are but two references to the 14th Amendment.

Before he joined the Justice Department, Mr. Marshall's background was as a talented antitrust lawyer representing clients like Standard Oil. His record on civil rights had been largely limited to teaching a term at historically black Howard University.

But the scarcity of his civil rights experience hardly disqualified him from the post for which he was being considered by the new Kennedy administration. In a 1971 book, "We Band of Brothers," Edwin Guthman wrote that Robert F. Kennedy, just designated attorney general, and his deputy, Byron R. White, had rejected the idea of choosing a known rights leader to take charge at the civil rights division.

"They felt that the only proper course for the department would be to proceed in strict accordance with the law, avoiding any appearance of pitting one social point of view against another," Mr. Guthman wrote. "They decided that someone who had been in the forefront of any rights or racial cause might be handicapped" by "past associations in civil rights enforcement."

Yet Mr. Marshall's job interview with Robert Kennedy did not go well. Neither man said a word for 10 minutes, according to Victor S. Navasky's 1971 book, "Kennedy Justice."

Mr. Marshall told his wife, "I blew it."

Mr. Kennedy said, "I have nothing in common with that man."

First impressions deceived. In "Robert Kennedy and His Times," Arthur Schlesinger Jr. wrote in 1978 that Mr. Kennedy had quickly come to treasure Mr. Marshall's "incorruptible character, dry humor and intense moral conviction."

President Lyndon B. Johnson also valued the Kennedy loyalist. He wrote a remarkable footnote on Mr. Marshall's letter of resignation from the government, dated Dec. 18, 1964. "I have never known any person," it said, "who rendered a better quality of public service."

Mr. Marshall was born in Plainfield, N.J., on Oct. 1, 1922, and graduated from Yale in 1943. He joined the Army and worked in the intelligence corps as a Japanese linguist. There he met Violet Person, a civilian working as a linguist, whom he later married. Besides his wife, of Newtown, and his daughter Catie, of Brooklyn, Mr. Marshall is survived by two other daughters, Josie Phillips of Plymouth, England, and Jane Marshall of Brooklyn; a sister, Grace Hart of Washington; and four grandchildren.

After World War II, Mr. Marshall earned a law degree from Yale and went to work for the Washington law firm of Covington & Burling. Once his service at the Justice Department was over, he turned down the deanship of Yale Law School and briefly rejoined the firm as a partner before becoming general counsel at I.B.M.

By 1970, however, he had arrived at Yale Law as deputy dean and professor. There he taught political and civil rights classes that were extensions of his work in Washington, although he also took his turns at first-year procedure, said Owen Fiss, a faculty colleague.

Mr. Marshall also served for 20 years as chairman of the Vera Institute of Justice, which works with local communities on criminal justice issues.

In whatever setting, he never lost the reputation for decisiveness he had gained at the civil rights barricades. His Justice Department colleague Nicholas deB. Katzenbach, who succeeded Robert Kennedy as attorney general in 1965, told of the time one of Mr. Marshall's socks fell overboard while they were sailing.

"Without hesitation," Mr. Katzenbach recalled, "Burke threw the other sock in after it."